Re C: A surprising state of affairs

When a parent removes a child from one country and the court decides, pursuant to the Hague Convention on Child Abduction, that the removal was wrongful, one would normally expect the court to order that the child be summarily returned to his or her country of origin. However, in Re C (leave to relocate), decided last May but only just reported, we had the unusual situation whereby the mother had removed the child to Ireland in March 2014 and Mr Justice Holman declared the removal to be unlawful in December 2014, yet the child was still living in Ireland and the mother was applying for leave to relocate her there permanently.

I will deal with how that situation came about in a moment, but first a little background. The proceedings concerned a five year old child, ‘C’. C’s parents (in the judgment the mother is called ‘S’ and the father is called ‘J’) were never married and their relationship broke down before she was born. S first alleged that C was conceived as a result of J raping her (an allegation she later withdrew) and then denied that J was C’s father, an allegation later disproved by DNA evidence.

All in all, a pretty bad start to life for C. And it didn’t get much better. As Her Honour Judge Harris said in the judgment, C has been the subject of litigation pretty much throughout her life (how many times have I read judges making that depressing observation?). J applied for contact in August 2010, after which the proceedings “trundled on” (to use Judge Harris’s expression), with various stuttering attempts at contact and numerous allegations on either side. In particular, S alleged that J was carrying out a campaign of harassment against her, and that he had repeatedly threatened to abduct C, as a result of which C is in fear of him. J admitted some of the alleged harassment incidents, but denied that he had threatened to abduct C.

And then S removed C to Ireland without informing either J or the court, and refused to disclose her address. She claimed that she did this in response to a specific incident when she alleged that J made various threats, including to kill C. Judge Harris found that S had fabricated that incident and that she had actually been planning her move to Ireland since January 2014.

Why, then, was S not ordered to return C to this country? Well, it was pretty well a result of the English and Irish courts being too polite to each other. After the abduction J had brought proceedings in both countries and as the Irish court was seised of the matter Mr Justice Holman was not prepared to make an order for C’s summary return, out of respect for the Irish court. In turn, the Irish court took the view that the English court should deal with the matter, as by the time it considered it S had already issued her application to relocate in the English court. The Irish court also considered that Mr Justice Holman had somehow given temporary permission for the child to remain in Ireland (Judge Harris found that he had not), and did not wish to “tread on the toes” of the English court.

Anyway, back to S’s relocation application. Perhaps the two most telling findings in Judge Harris’s judgment were the following:

“I have come to the clear view that the mother has on many occasions fabricated and on other occasions grossly exaggerated out of all recognition the incidents upon which she relies. I am quite satisfied there was no campaign of harassment and that, as I have said, the incidents have either been exaggerated out of all recognition or fabricated entirely. Therefore, it follows that it is my clear judgment that C has been manipulated in a gross and abusive way by being brought up in this environment where she has been caused to see her father as a danger to her.”

And:

“I am wholly satisfied that the mother’s motivation in going to Ireland was primarily to exclude the father from the child’s life.”

In the circumstances Judge Harris was quite satisfied that she should refuse leave for the mother to relocate to Ireland. She therefore ordered that S should return C to this country immediately the school term ended. She also granted J parental responsibility and made an order that S disclose her address. The issue of J’s contact with C was to be dealt with after C’s return to this country.

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